Thursday, June 28, 2007

Case Overboard!

Yes, yes, everybody's paying attention to the Supreme Court's decision striking down a school district's attempt to use race to achieve racially balanced schools, but I want to discuss today's other big decision, an antitrust case about resale price maintenance.

"Resale price maintenance" occurs when a manufacturer and a retailer agree that the retailer will charge at least a specified amount when selling the manufacturer's product. In today's case, a manufacturer of leather goods instituted a policy of refusing to sell to retailers who sold the products for less than the manufacturer's suggested prices.

In a case called Dr. Miles Medical Co. v. John D. Park and Sons, the Supreme Court previously decided that resale price maintenance is a "per se" violation of the antitrust laws -- that is, it's always illegal. But today, the Court overruled Dr. Miles. After today, resale price maintenance is to be judged by the "rule of reason" -- that is, courts are to look, on a case-by-case basis, at whether a particular resale price maintenance agreement helps or harms competition.

Now, I confess I don't know much about antitrust law -- it's an area I've always neglected. As the Court said, one can imagine some cases in resale price maintenance could be pro-competitive -- it could encourage retailers to take on new products knowing that they won't be undercut by discounters. One can also imagine anti-competitive effects of resale price maintenance -- most obviously, it prevents price competition among retailers selling the same good, thereby increasing the price consumers must pay for that good. So one can see arguments on both sides, and I'm not the expert.

But I do know this: Dr. Miles was decided by the Supreme Court in 1911. It's been the law for 96 years. The Court even reaffirmed it several times during that period. Congress had every opportunity to overrule it statutorily and didn't. Indeed, in 1937 Congress passed a law allowing individual states to "opt out" of Dr. Miles and permit resale price maintenance agreements, but then in 1975 Congress repealed that law, suggesting that Congress was happy to have resale price maintenance banned on a uniform, national basis. This makes the decision to overrule Dr. Miles particularly startling.

Today's decision to throw Dr. Miles overboard shows, I would say, that President Bush's appointments to the Court have had their desired effect. There's no doubt that the new Justices are taking the Court on a sharp right turn. And notably, they seem to have no particular compunction about smashing precedents they don't like in order to get where they want to go.

Some of this week's other big cases show the new Justices formally preserving precedent while functionally eviscerating it. Sometimes that strategy doesn't work -- precedents like Dr. Miles are just too clear to work around. When that happens, the new Court seems ready to dump them.

If the Court will overrule 96-year-old cases touching the heart of antitrust law, that have been repeatedly reaffirmed, it's hard to see what precedents are safe. We are truly in a new era of Supreme Court decisionmaking.

Wednesday, June 27, 2007

IP on the Menu

The NY Times reports a chef suing her former sous-chef for copying her restaurant.

As usual, it's tough to get a clear sense of the merit of the suit from reading a news account. It's clear that the "trade dress" of a restaurant -- its total image and overall appearance, including things like the decor and the menu -- can be protected intellectual property. On the other hand, you can't own the exclusive right to serve lobster rolls and fried clams.

IP law is always a delicate balance between protecting good competition -- the kind of competition that makes America great and promotes low prices and good products for consumers -- while stifling bad competition -- the kind where someone wrongfully steals someone else's protectible ideas. Judging from the article, the plaintiff is pushing the envelope here. The defendant may have copied too much, but one gets the sense that the plaintiff just doesn't like competition. If she's discovered that New Yorkers enjoy a New England seafood-style restaurant, that's great, but others are entitled to compete in that market.

Tuesday, June 26, 2007

Are You a Golfer?

Are you a golfer? Take this simple test:

The Associated Press reports that "a man who lost his ball in a golf course pond nearly lost a limb when a nearly 11-foot alligator latched on to his arm and pulled him in the water."

Fortunately, the man was able to beat the alligator off with a golf club.

If you are not a golfer, your first thought on reading this story was, "oh my God, how scary!"

If you are a golfer, your first thought was, "what club did he use?"


[P.S.: Sadly, I had to alter one critical detail in the above story. The man did not beat the alligator off with a golf club. He used his left arm. But the important thing is the test. We can't wait for the perfect story.]

Monday, June 25, 2007

Standing Down

Almost done with the Supreme Court Term! Many exciting decisions today. My favorite, of course, is Hein v. Freedom from Religion Foundation, the standing decision.

My, what hath the Court wrought. The rule has long been that if Congress directs federal money to be spent on religion, any taxpayer may challenge the expenditure as violative of the Establishment Clause of the Constitution (Flast v. Cohen). This rule has existed uncomfortably with the rule that if Congress directs property to be given to a religion, taxpayers lack standing to challenge the transfer (Valley Forge v. Americans United) -- not much of a distinction, you might say -- that is, if you were rational.

Today, the Court adds the following stunningly logical conclusion: if the Executive Branch directs funds toward religion, without congressional authorization, taxpayers cannot challenge the action. So if Congress tells the President to spend money on religion, and the President does it, the action is more vulnerable to challenge than if the President just does it without congressional instruction.

Fortunately, it is hardly necessary to explain how silly this all is. Justice Scalia has done so for us. Concurring in the dismissal of today's case, he explains that "there is simply no material difference" that explains the different results of the cases the Court has decided in this area, and that Valley Forge "achieved the seemingly impossible: It surpassed the high bar for irrationality set by Flast's" distinction of prior cases. Ah, Justice Scalia always knows how to nail bad arguments. He concludes that the whole area is a "jurisprudential disaster."

Justice Scalia is right that the jurisprudence in this area has become impossible. Half the decisions need to go. I would choose the opposite half from him -- taxpayers should have standing to challenge government action that allegedly violates the Establishment Clause. The result might be that the Clause would be enforced. And what would be so terrible about that?

Somewhat amusingly, the dissenters just explain why Flast should lead to standing for today's plaintiffs -- they don't take on Justice Scalia's arguments that Flast should go.

Friday, June 22, 2007

More Sizzling Snoozers

It's late June, so the Supreme Court is coming down with buckets of decisions, and boy are we Civ Pro professors happy -- there haven't been so many pleading decisions since . . . well, there haven't been, I don't think. And although any normal person would fall asleep just reading the caption, these decisions are actually rather important.

Yesterday's sizzling snoozer was Tellabs v. Makor Issues & Rights, in which the Justices made it harder for investors to sue companies for securities fraud.

Unlike an earlier pleading case this Term, in which the Court just blatantly ignored the Federal Rules in an effort to get rid of some cases it doesn't like, this decision had the excuse that the bad rule it lays down was more or less commanded by Congress, which tried to put the kibosh on excessive securities litigation by commanding that plaintiffs in securities fraud cases must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind."

The great question: does this mean that plaintiffs must plead facts that make the inference that the defendant deliberately defrauded them at least as plausible as any competing inference, or more plausible than any competing inference? Or maybe just make the inference probable, without even requiring it to be more probable than not? The Court split 6 to 2 to 1 among these choices, so "at least as plausible" it is.

But none of the Justices said what really needed saying: look, if Congress insists on this requirement, we have to enforce it and it has to mean something, but it's just silly. The pleading stage of a case exists to let the defendant know generally what it's being sued for. Everything else should be moved to discovery. You can't require the plaintiff to know everything before litigation even gets started. Particularly with regard to the defendant's state of mind. How is the plaintiff supposed to know that before litigation even gets started?

Congress has control over these things, and the Court was right to enforce what Congress wanted, but Congress wanted the wrong thing.

Thursday, June 21, 2007

Stop Me Before I Kill Some Stem Cells

Would it be too much to suggest that public health decisions be made on the basis of public health and not turned into morality plays? Well, I guess it would. President Bush vetoed legislation lifting restrictions on federal funding of stem cell research.

Look, I'm totally behind valuing human life, really, but are we unable to make any distinctions? Is there no distinction between killing a human being and using a 100-cell embryo that would have been discarded anyway for life-saving research?

I have no idea whether stem cell research will ever lead to anything, but it does offer hope for some awful diseases. If you had to kill babies to do the research, I would be against it. But let's try to make public health the center of public health decisions.

Wednesday, June 20, 2007

Big Day for the Income Tax Pages

I've mentioned that visits to my income tax pages serve as a barometer of goings-on in the bizarre world of tax protestors. Yesterday I had my biggest numbers ever -- over 2400 hits from over 1000 different visitors.

What's up? Well, on Monday, convicted tax criminals Ed & Elaine Brown held a news conference from the New Hampshire home where they remain holed up evading arrest and hinting at a violent ending. The case is all over the Internet -- heavens, it was being discussed on the "World of Warcraft" discussion forums (although someone deleted it -- off topic, I guess) -- and a New Hampshire TV station posted a story about them that linked to my pages (although I think the WoW forums provided more hits!). Randy Weaver, of all people, showed up at the press conference (he had his own showdown with the Feds at Ruby Ridge years ago).

I suppose I should cease to be amazed at how many people believe there is no law that requires them to pay income taxes, or at least have doubts on the matter, or think Ed Brown is a hero. (Of course, not every visitor to my pages falls into these categories.)

But it still fills me with wonder. What do these people think is going on in the government? Do they really believe that there is some vast conspiracy to trick people into paying taxes they don't owe? How could such a conspiracy function and not be exposed by judges, law professors, and private lawyers?

What causes people to believe this conspiracy stuff so fervently and to accept any nonsense posted by untrained lay persons on the Internet rather than explanations by trained professionals who might actually know the answer?

And why do they idolize a wealthy couple that refuses to pay taxes? I could understand some support if the Browns were poor, or struggling middle-class, if they refused to pay taxes to show opposition to the Iraq war, and if they welcomed arrest so that America could be forced to confront the spectacle of people being sent off to jail for opposing the war. But the Browns are just wealthy people thumbing their noses at the whole system, based on their nutty claim that there's no law requiring payment of income tax.

And by the way, why didn't the Marshals just arrest them during the press conference?

Tuesday, June 19, 2007

Does Text Matter?

OK, enough golf frivolities, back to stuff where I can actually add some value.

Our illustrious Supreme Court never seems to stop fighting over the most basic questions of statutory interpretation, including the fundamental question of whether text matters. Sometimes the Court says that it is Congress's helpless slave, bound to follow statutory text mindlessly; other times, it discovers power to depart from statutory text in the name of some other goal. And sometimes it does both on the same day!

The Court followed text slavishly in yesterday's decision in Powerex Corp. v. Reliant Energy Services. In this rather complex case (which is simplified here), plaintiffs sued various power companies in state court for allegedly conspiring to fix energy prices in California. The defendants removed to federal court on the ground that some of them were foreign sovereigns -- they were power companies owned by foreign governments (e.g., Canada). The federal district court decided that one of them wasn't a foreign sovereign and remanded the case to state court.

Now the defendant appealed to the Ninth Circuit on the question of whether it was a foreign sovereign. Unfortunately for the defendant, 28 U.S.C. 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise."

You might think that would be it. And you would be right. The Supreme Court said, look, 1447(d) makes these matters not appealable. We have to follow the text of the statute -- even though, as the Court acknowledged, in other cases the Court hasn't followed the text of this statute; it has, by its own admission, "interpreted §1447(d) to cover less than its words alone suggest." In other cases, the Court found that certain appeals weren't within the policy of §1447(d), even if they were within its text. But not this time. Although acknowledging that denying potential foreign sovereigns appeals on the issue of whether they are foreign sovereigns has undesirable policy consequences, the Court said that "what the text of §1447(d) indisputably does prevails over what it ought to have done." The end.

Meanwhile, on the same day, the Court faced the question of whether the securities laws so thoroughly regulate the behavior of investment banks that underwrite IPOs that they implicitly preclude application of the antitrust laws to the same conduct. When this question arose in a case called Credit Suisse Securities, Justice Thomas pointed out that the text of the securities laws provides a clear answer: no. The securities laws say, "the rights and remedies provided by this subchapter shall be in addition to any and all other rights and remedies that may exist in law or in equity." That seems pretty clear, doesn't it? It says that the securities laws provide extra remedies, in addition to any and all other remedies that other law provides.

You might think that our text-obsessed Supreme Court would follow this statutory text as mindlessly as the text involved in the Powerex case, but no. The Court noted that in some prior cases, it had departed from the literal meaning of the text (also true in Powerex, as we saw a moment ago), and it therefore felt licensed to reconcile the securities laws with the antitrust laws on a policy basis. The Court decided that it wasn't a good idea to have both antitrust regulation and SEC regulation of the same underwriting conduct, so it held antitrust suits implicitly prohibited.

So does text matter or not? This problem just keeps cropping up again and again. Just last week, the Court threw out an appeal filed a couple of days late -- because the district judge specified the wrong deadline! The district judge granted the appellant an extension of time to appeal until February 27, not realizing that it only had power to grant an extension until February 24. The Supreme Court read the appeal deadline strictly and said it was the appellant's tough luck that the district court had made such a mistake. But when it wants to, as in the securities case, it treats statutory text as merely advisory and considers itself empowered to make policy decisions contradicting the text.

My own scholarly writings suggest that a firm policy of slavishly following text is a mistake. It seems appealing to think that courts should just do what statutes say without exercising policy judgment, and one might imagine that Congress would write better statutes if it really understood that courts would not rescue it from its drafting errors. But these hopes are illusory. Poorly drafted statutes are inherent in the hurly-burly of the legislative process, and courts have the advantage of seeing the problem at the moment the statute is applied, whereas Congress has to look at things only in advance. That's why courts have to have (and always have had) some power to ameliorate statutory errors. The great trick is knowing when it's appropriate to deviate a little from statutory text and when courts should just follow the text. Even I think deviations should be rare. For the full theory, read my articles -- the short version is that courts should be guided by background principles of law. When a statute startlingly deviates from the way things are usually done without apparent justification, the time may be right for the court to deviate from the statute.

Monday, June 18, 2007

Last Cliche Running

Isn't it kind of insulting to refer to Angel Cabrera as the "Last Man Standing" at the U.S. Open? That suggests he won only because everyone else screwed up.

Look, the man broke par twice in four rounds, had a round of 1-over and a round of 6-over, to finish at 5-over, on a course where half the field was 11-over or worse in the first two rounds. He beat last year's champion by 14 strokes. He held off Tiger Woods, Jim Furyk, and all the rest. I say, more power to him.

WaPo's headline is kinder: "Cabrera Rises Above Field."

Friday, June 15, 2007

Storm Clouds Gathering

My trusty web counter serves as a barometer of activity in the bizarre world of tax protestors. As loyal readers know, I have an eccentric interest in the strange goings-on among those who claim that there's no law requiring most Americans to pay income tax, and I maintain some web pages explaining why they're wrong. When there's a big event in this world, activity on these pages spikes, so when I noticed this week that my hits were more than double the usual amount, I knew something was up.

It seems that we might be nearing the conclusion of the strange story of Ed and Elaine Brown. According to news reports, this New Hampshire couple, although earning an average of over $200,000 a year, paid no taxes from 1996 to 2003. A jury convicted them of 17 felony counts in January -- but they weren't there. They've barricaded themselves in their home and said they will defend themselves against anyone who tries to arrest them. The judge in their case sentenced them (in absentia) to 63 months in prison, but the sentence has yet to be carried out because the Browns are still in their home. The U.S. Marshals, to avoid blodshed, have not yet moved against them.

As is typical of tax protestors, Brown claims that there is no law requiring him to pay taxes, and he even says he will pay immediately if the government will just show him the law requiring him to do so.

Now, according to wholly unreliable sources, the Marshals have called the Browns to say that they are coming to arrest them soon and hope to avoid violence. So perhaps this bizarre incident may be drawing to a close, hopefully without a Waco-like fiery finish, despite the Browns pledge of "freedom or body bags." But perhaps it's all a rumor and there will be a lot more waiting before the end.

What's truly astonishing is the outpouring of public support for these criminals. All over the web, there are sites and forums proclaiming what heroes the Browns are for violating the tax laws and how outrageous it is that the government might want to put these convicted criminals in jail. I've been getting a lot of mail about them.

I can understand the romantic attraction of a Robin Hood-like figure who steals from the rich and gives to the poor, but the Browns are stealing from everybody and keeping it for themselves. The Browns are not poor -- their income puts them in the highest category that the census keeps track of. And that category is "$100,000 and over," so the Browns $200,000 figure puts them off the chart. By not paying their taxes, they're making honest taxpayers pay more. They've basically stolen hundreds of thousands of dollars from honest, hard-working taxpayers, most of whom are poorer than them, and kept it for themselves.

Something is wrong in the country when people hate the government so much that they'd rather support these tax criminals than see them arrested. We need to figure out some way to reach out to this vast, disaffected community.

Wednesday, June 13, 2007

This Afternoon

I've been imagining that my feeling that it would be best to close our extraordinary prison in Guantanamo Bay just reflects my profound ignorance of military and international security matters. Sure, it seems from my naive, uninformed viewpoint that, even assuming we put aside all questions about legality and just ruthlessly follow our national interests, Guantanamo's negative impact on our national values and international standing outweigh whatever advantage we get from keeping people we regard as terrorists or enemy combatants in a law-free, judge-proof, indefinite limbo. But what do I know? An important part of being a professor and a scholar is recognizing and admitting the limits of one's knowledge and information. I'm not in a good position to assess what Guantanamo is doing for us security-wise, and, for all I know, it really is helping a lot, maybe even so much that we should accept the negative consequences.

That's why I was so interested to see that Colin Powell says that if he were in charge he would close Guantanamo "this afternoon." Powell is in a position to weigh the costs and benefits of Guantanamo -- he's probably the most qualified person around. He's been a General, the National Security Advisor, Chairman of the Joint Chiefs of Staff, and Secretary of State. If there's someone who's in a better position to assess how Guantanamo is helping and hurting us with regard to our military, national security, and diplomatic needs, and to weigh these all up against each other, I'd like to know who it is. And he says he would close Guantanamo because it has become a major problem in "the way the world perceives America."

So maybe the liberals are right after all. Getting your way internationally is not just a matter of flexing your military muscles in every super-macho way you want. Paying a little attention to diplomacy and international law actually helps too. It's not just me saying this, it's Colin Powell.

And while we're at it, here are a few other things the President could do this afternoon:

  • Fire Alberto Gonzales and install an Attorney General who will enforce the laws honestly and impartially.
  • Fire Lurita Doan and instruct all appointees who serve at his pleasure that government departments are not to be politicized.
  • Admit that if we knew then what we know now, we would not have invaded Iraq.
  • Apologize for his role in taking the nation into war based on incorrect information.
  • Say that, however mistaken going into Iraq may have been in the first place, we're there now and we have to deal with the situation, come up with a truly credible plan for making Iraq succeed in a plausible time frame even though it will require sacrifices, and then implement the plan.

I know it's a little late in the Bush presidency and people are saying he's in his lame duck period, but wouldn't it be quite a jump-start if he admitted his past errors, swept the slate clean, and tried to do the right thing from here on out?

Tuesday, June 12, 2007

No Confidence, Part II

So the Senate failed to invoke cloture on a vote of no confidence in Attorney General Alberto Gonzales. As I explained yesterday, such a measure would have been a perfectly appropriate way to ratchet up the political pressure on the President to fire the embattled Attorney General -- the Senate has every right to express its view on this important question without incurring the time and costs of an impeachment proceeding.

But OK, it didn't work. And not only that, but the Republicans seem to have won the media debate, successfully painting the no-confidence vote as some weird British thing that doesn't belong in our system. The Democrats learn once again that if you're going to try to turn the political screws, you have to do it right. Now they just look ineffectual, which is their negative stereotype. You can't let the other side make you look like your stereotype.

So what next? The answer is that cabinet officers are impeachable. It's a rare thing for a cabinet officer actually to get impeached (it's only happened once, I believe), but that's only because, if a cabinet official gets into impeachable trouble, there's usually so much political pressure for him to resign or for the President to fire him that impeachment usually becomes unnecessary. In this case, a President known for his unusual stubbornness and the A.G. are sticking to their guns. So it's time for Congress to haul out the heavy ammo.

Has Gonzales committed an impeachable offense? The impeachment clause of the Constitution states that "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." So one might think that Congress needs to prove that the Attorney General has committed some high crimes and misdemeanors in order for him to be impeachable.

There are two answers to that. First of all, it seems as though there is a good chance that he did commit high crimes in the literal sense. One strongly suspects that some of his statements to Congress about the U.S. Attorney scandal have been outright lies -- such as his claims that he can barely remember anything that happened. And the Justice Department itself seems to have concluded that he was breaking the law in connection with the domestic wiretapping program (although he wasn't Attorney General at the time).

But even more important, it's not clear that an impeachable offense has to be an actual violation of criminal law. Professor Michael Dorf of Columbia suggests that policy disagreement is not a basis for impeachment, which seems right enough, but he also points out that malfeasance in office, whether or not literally a "crime," may sufficiently be an impeachable "high Crime." Senators have agreed.

After all, to use an example that I believe comes from Judge Posner, suppose the President didn't commit any crimes, but simply left the country, moved to the French Riveria, and lived splendidly on his $400,000 salary while doing no presidential work? And made clear that he intended to continue doing that throughout his term? It seems hard to believe that the country would have no mechanism for removing the President from office in such a case.

So I would say that Gonzales could be impeached for malfeasance in office. The charges would have to go beyond mere policy disagreement, but things such as violation of civil service laws by making politics a criterion for hiring career staff would qualify as an impeachable offense even if it is not literally a crime. Gonzales is impeachable.

Monday, June 11, 2007

No Confidence

The Senate is scheduled to consider a vote of "no confidence" in Attorney General Alberto Gonzales. Apparently the one-sentence bill is unlikely even to survive a test vote.

Pity. Here are a few thoughts about this no-confidence vote.

It's perfectly appropriate for the Senate to express its "sense" that it (and the American people) have lost confidence in the Attorney General. The expression would be nonbinding, of course, it wouldn't have any legal effect (and still wouldn't even if the House of Representatives adopted its similar measure), but the Senate is as entitled as anyone else to express its opinion on the important question of whether the Attorney General is doing a suitable job.

Alberto Gonzales eminently deserves an expression of lack of confidence, for the U.S. Attorney scandal, among other reasons. It's become clear, even if mainly by negative inference, that the U.S. Attorneys were fired for improper reasons. If there were proper reasons, we would know them by now, instead of having a comically absurd series of evasions, failures to recollect, pointing of fingers, and stonewalling as to how and why the fired U.S. Attorneys got on the list to be fired. And it's been openly admitted that the Department engaged in political hiring of career staff. And Gonzales was so eager to violate our rights that he went to John Ashcroft's hospital bed to try to get him to authorize illegal wiretaps while in the fog of illness. One can't have confidence in this man to be the nation's chief law enforcer.

The President and other Republicans are charging that the no-confidence vote is just a piece of cheap political theater. There's no doubt that it has some element of grandstanding. The vote won't actually have any legal effect. The Democrats are obviously trying to embarrass Senate Republicans by forcing them to vote on this measure (and why not? The Republicans were masters at bringing up embarrassing votes when they controlled Congress).

But still, the measure is appropriate. The alternative would be for the House to impeach Gonzales and the Senate to remove him. And frankly, that would be an even better idea than this no-confidence vote (more on that tomorrow). But impeachment would be time consuming and cumbersome. It would distract Congress from other important business. It might well be the best solution, but one can't always have the best. There are cost-benefit tradeoffs in this matter, as in all matters.

The House and Senate have every right to desire a cabinet official to go once they have lost confidence in him. They also have every right to try to make it happen as cheaply, efficiently, and painlessly as possible. The no-confidence vote is an appropriate way to tell the President that he really should get rid of the Attorney General. If it succeeds in ratcheting up the political pressure on the President to dump Gonzales without incurring all the costs and burdens of an impeachment proceeding, that's a good thing. Political jockeying between Congress and the President is appropriate, and avoiding heavy administrative costs is desirable.

Of course, the President has every right to resist if he wants to, until Congress takes the action that would really have legal effect -- impeachment and removal. It's all a question of how much political pressure Congress can bring to bear. But it's wrong to dismiss, as "political theater," perfectly appropriate attempts to put political pressure on the President.

Friday, June 8, 2007

Welcome to America

Welcome to America, where Senators vote for amendments they oppose in order to topple bills they don't like, thereby making immigrants less welcome in America. Such careful strategy by Senators opposed to the immigration reform bill sent immigration reform packing, at least for now.

I am woefully ignorant on all issues relating to immigration. Are there 12 million illegal immigrants in the country, or 20 million? Do immigrants, legal and illegal, undermine wages for American workers, or do they promote so much economic growth that everyone is advantaged? Do aliens take "jobs that Americans won't do" or would Americans do any job if only employers offered the appropriate wage for it? I can only guess.

But I don't think one has to be an expert to form this basic opinion: why don't we choose a policy on immigration and then actually enforce it? What we seem to have now is a plan whereby we theoretically prohibit undocumented aliens from entering the country and particularly from working here, but in practice we allow the rules to be openly and notoriously violated. We do this, I presume, because it serves vital interests to have large numers of aliens available for work. I'm a law professor, not an economist, but it sure seems like having millions of extra workers around would lower wages and make employers happy. And employers are even happier that so many of the workers don't have legal status -- such workers probably won't complain about unsafe working conditions, unpaid overtime, arbitrary firing, and all the other practices that make companies more profitable.

If we're going to prohibit employment of undocumented aliens, why not really prohibit it? My unexpert guess is that it would be quite difficult to stop illegal immigration by securing the borders, but not so hard to stop it by taking away the incentive for it. The key would be to really make it illegal to employ illegal aliens, and then to enforce that rule against employers.

At the moment, the law prohibits employers from "knowingly" employing illegal aliens, but all employers are really required to do is have their employees produce a document that appears on its face to be genuine.

Even this requirement is ludicrously underenforced. Do you know how many employers were prosecuted in 2003 for hiring illegal aliens? Four. That's right, four. That's not a typo for four thousand or even four hundred -- the number is four.

But criminal prosecution is a serious matter. Employment of illegal aliens would probably be adequately deterred by civil fines. So, against how many employers did the government initiate civil fines in 2004? Three! And that's not a typo either.

In 1986, we granted amnesty to most illegal aliens then in the country but promised to crack down on subsequent illegal immigration by making it illegal to employ undocumented workers. The result of our absurd underenforcement of this rule is 12 million more illegal aliens.

Look, I admit again that I don't really know anything about immigration. But I do know that it's crazy to have all our policy planning undone by utter lack of enforcement.

If we want to let everybody in, fine. If we want to keep people out, fine. I don't really have a dog in this hunt. But pick a sensible policy, put it in place, and then enforce it.

Thursday, June 7, 2007

Cheney in the Loop

James Comey's latest disclosures show that Vice President Cheney was personally involved in the tussle between the White House and the Justice Department over secret surveillance. Cheney told Justice Department officials that he disagreed with their objections to the surveillance program and he later blocked the promotion of a DOJ official because of his role in refusing the certify the program's legality.

Now, as with the U.S. Attorney firing scandal, there are two ways to view this. On the one hand, there's nothing wrong with the White House giving direction to the Justice Department. Senator Schumer said "Mr. Comey has confirmed what we suspected for a while -- that White House hands guided Justice Department business," as though there were something inherently sinister about it. But why would there be? The Attorney General works for the President. A boss is allowed to give orders; that's part of being the boss. So just as the White House is correct to point out that U.S. Attorneys serve at the pleasure of the President and it's appropriate for the President to set their priorities, so too can the President (or the Vice President, if delegated authority from the President) give direction to the Department of Justice.

But, again, as with the U.S. Attorney scandal, the President's authority can be used in legitimate or illegitimate ways. The President can set priorities for U.S. Attorneys, but he can't tell them to bring meritless prosecutions just to harass members of the opposition party. Similarly, it's perfectly appropriate for the President to set priorities for the overall Department of Justice, but the President (or Vice President) leaned on the Justice Department to certify as legal a program that is illegal, then you have a scandal.

Which do we have here? Well, if White House officials were just setting legitimate priorities and giving legitimate direction, would they have (a) accepted the Justice Department's decision that the surveillance program was illegal, (b) explained their difference of opinion and asked the Justice Department to consider their arguments, or (c) gone to the hospital room of the temporarily out of power Attorney General in the dead of night and tried to get him to overrule the decision of the Acting Attorney General while he might be too ill to think straight?

Wednesday, June 6, 2007

Scooter on Ice

So Lewis "Scooter" Libby gets a 30-month sentence for perjury, obstruction of justice, and lying to FBI investigators. Sentences don't sound so bad when stated in months, but that is two and a half years -- quite a stretch in the Big House. Now President Bush has to decide whether to pardon him.

I'm sticking with my prediction that the pardon will come on November 5, 2008 -- that's the day after the 2008 election, when Bush can issue the pardon with no fear of political consequences. But meantime, the conservative press is sounding the drumbeat for a pardon now.

You have to hand it to those conservatives: they display a perfect ability to argue without any embarrassment at contradicting what they've argued in the past. The National Review editorial argues that there is "solid justification for a pardon" because there was never a charge on the underlying act of outing a CIA agent (which the scandal was really about) but only charges of perjury and obstruction of justice.

Excuse me? Didn't the Republicans impeach President Clinton -- making about the biggest stink one can make in our country -- for perjury before a grand jury, even though the original investigation into Whitewater never amounted to anything? I don't recall the National Review coming to Clinton's defense then.

Displaying the same fine sensibilities, House Republicans are calling for the expulsion of indicted Democratic representative William Jefferson, even though they didn't try to expel Republicans Tom DeLay or Robert Ney when they were indicted.

The best way to deal with high-profile cases is by the numbers. Let's apply the usual rules. Libby was found guilty and received a sentence. I think I would have given him about 18 months, but the judge said 30. Extraordinary measures are unwarranted.

Monday, June 4, 2007

Equal Time for Democrats

I wouldn't want my loyal readers to imagine that I blog only Republican scandals. No, we bloggers have a loyalty to something higher, something that transcends party lines, a loyalty to . . . to what, exactly? The truth? Good, public spirited government? Or just the desire to make snarky comments about powerful people who land themselves in a bucket full of trouble?

Putting blogger self-psychoanalysis to the side, a grand jury has indicted William Jefferson, alias "Freezer Bill." That's the Democratic congressman found with $90,000 in cash in his freezer. And the bills were marked before being given to him by a cooperating witness. Oh, and a company head has already pleaded guilty to bribing him.

The guy I have to admire is Robert Trout, Jefferson's attorney. He's all over the news saying that Jefferson is innocent.

Well, I can see his point. Plenty of innocent people keep their cash in the freezer. If you don't keep cash cold, it can spoil. And it would get wet if you kept it in the dishwasher. So there's no reason to see anything suspicious in that.

And lots of innocent people end up with cash that's been specially marked for an FBI investigation. Especially $90,000 worth of such cash. That could happen to anybody.

And I always like to have some spare cash in the house for emergencies. You never know when you might need to pop down to the grocery store and buy $90,000 worth of last-minute napkins and peanuts for a party.

Look, I've always maintained that it's dangerous to form an opinion of a case based on media accounts. But in this case I'm thinking about making an exception. If Jefferson can explain his way out of this one, he's got my vote forever.

Defender of the Indefensible

My favorite Republican scandal is back in the news, with that dean of compassion, that staunch advocate for the unfairly oppressed, Robert Novak, defending the poor, the pilloried, Lurita Doan, Administrator of the General Services Administration, from the harsh glare of unwarranted media attention and political machination.

Let's review: On January 26, Scott Jennings, a top aide to Karl Rove, gave a PowerPoint presentation at GSA to Doan and her top aides on highly political topics, such as which were the White House's top 20 2008 House targets (i.e., House seats they hope to pick up in 2008). Following the presentation, Doan, according to six witnesses, asked "how can we use GSA to help our candidates?" Then, just two months later, she testified before a congresstional committee that she had no recollection of saying that, and indeed had no recollection of the presentation at all. The politics were so blatant, the violation of law and ethics so obvious, that even the Bush Administration's own Office of Special Counsel has now released a comprehensive report that concludes that Doan violated the Hatch Act, which restricts political activities of federal employees.

Doan's faulty memory and comical lack of candor are evident throughout the report. With regard to the central allegation that Doan asked "how can we use GSA to help our candidates?", Doan was asked whether she denies saying that, or whether she just doesn't remember whether she said it or not. Doan's reply? That she doesn't understand the difference! Yes, it's true, when asked, "Is your testimony that you never said, how do we help our candidates, or something to that effect? Or is it that you don't remember saying anything like that?" she replied, "I don't understand the difference. I just do not understand the difference you're trying to make . . . " (See page 8 of the report, which notes that Doan was an English major.)

Enter Bob Novak. Novak starts by noting that OSC concludes that Doan violated the "68-year-old Hatch Act," as though the age of the Hatch Act is remotely relevant (he later refers to it as the "1939 Hatch Act"). The federal law against defrauding the government dates back to the 1860s, but I don't think you can get out of a charge under the law by saying that it's just so old that no one should care about it.

Novak hints that Doan is being pilloried because she tried to "institute businesslike procedures" at GSA. I guess I have to agree that misusing the government's massive contracting power to help favored political candidates would indeed be "businesslike" by today's standards.

Novak defends Doan's indefensible question about helping "our" candidates by noting that it was addressed to Jennings, the White House operative. May one ask, so what? Any suggestion that GSA use its contracting power to favor political candidates would be wrong, regardless of to whom it was addressed.

(It is true, although Novak does not stress the point, that there are different reports of exactly what Doan said. According to the OSC report, some witnesses remember her asking "how can we use GSA to help our candidates?"; others report that she said, "how can we help our candidates," which is perhaps not quite so damning. In my view, Doan's continued, patent lack of candor in remembering what she said justifies drawing an adverse inference regarding exactly what she said and meant.)

And naturally, Novak falls back on the favorite tactic of the Bush Administration and defenders -- attack the source. He suggests that the OSC report is "payback" by Special Counsel Bloch for the White House's failure to defend him from his own attackers.

The Doan scandal is merely the most obvious of the Bush Administration's excessive politicizing of everything the government does. We know this is going on everywhere. We have an explicit admission (by Monica Goodling) that the Justice Department trashed its once-proud tradition of nonpolitical hiring of career staff attorneys. Doan has been justly nailed, and if she doesn't resign, an impeachment inquiry would be appropriate.

Back in Business

OK, it was a great vacation, but now I'm back and rarin' to go. There are politicians and judges and financiers and administrators and academics who need to be analyzed, satirized, idolized, and pilloried. What have I missed? Let's go!

Sunday, June 3, 2007

Excellent Vacation

I'm back from the outer banks. What a great time. Gorgeous beach. Fabulous beachfront house. Perfect weather. Wonderful girlfriend.

I took a break from work, of course, but also a break from news, from e-mail, from blogging, from Internet surfing, from caffeine, from care, worry, and distraction. Who needs them? At work I check the headlines every hour, and my e-mail multiple times per hour, and for what? It's an obsession I would be embarrassed to admit to if it weren't so common (check out David Cole's recent piece in the WaPo). We should all relax a bit and work as though we were on vacation and just didn't have instant Internet access at all time.

Oh, I'm sure I'll be back into keeping up with every twist and turn of the news soon enough, but it was nice to be free of them for a week.

Mostly I sat on the beach and read. I read so much for work that it's difficult to read for pleasure during the term, so vacation is a time to read voraciously. I can recommend Wizard of the Crow, the latest from exiled Kenyan author Ngugi Wa Thiong'o. For an author whose best known work is called Petals of Blood, it's quite a departure -- much more humorous than upsetting. It takes a while to get going, but I was quite absorbed by about halfway. I also read Scott Turow's Presumed Innocent, which I found in my library and realied I'd never read. Obviously not literature, but not bad for its genre. Certainly beats Grisham's stuff any day.

Also went swimming and hit a few golf balls. But mostly it was beach, beach, beach.

And I am embarrassed to admit this, but I took pleasure in noting that, even though the weather really couldn't have been more perfect all week -- absolutely cloudless skies and temperatures in the low to mid 80s -- it clouded over considerably on the day I left, and heavy rain is forecast for today and tomorrow because of tropical storm Barry. Why does that sort of thing make one happy?